Medical marijuana attorney Rob Corry: "The future is here"

The lawsuit against Centennial by CannaMart, a medical marijuana dispensary the city shut down despite granting it a business license a short time earlier, gets its first reading in court today, and Rob Corry and a team of attorneys representing the plaintiffs, including several medical marijuana patients, are clearly feeling their oats.

In advance of the 1:30 p.m. hearing, they've released profiles of the patients in question, written to evoke maximum sympathy, plus a bench brief and
a letter from Corry to Andrew Nathan, the attorney representing Centennial, in regard to a potential settlement.

The latter makes numerous strong statements, with perhaps the boldest being, "The future is here." Look below for some key excerpts:

Having worked with a number of local governments of various degrees of sophistication on this issue across Colorado, I believe the actual concerns of your council member clients are related to the unique and complex history of marijuana and emotion-driven "squeaky wheel getting the grease" citizen complaints about the proliferation of caregiver operations, coupled with a NIMBY-ist/Prohibitionist impulse that somehow, the medical use of marijuana by suffering people isimmoral and should not be viewed or even contemplated by passerby. While citizens complaining about marijuana are entitled to some deference, the constitutional rights of my clients, who in some cases served our country in war and who suffer from painful medical conditions, supersede...

The future is here. Medical use of marijuana is a constitutional right. My clients are committed to helping people and running a responsible, transparent business than the City can be proud of. The bottom line is that the City's total ban causes needless human suffering, and must be adjusted to permit the legal use of the property to help sick people.

Here are the aforementioned patient profiles, as well as the complete bench brief laying out the Corry crew's arguments:

PATIENT PROFILES

ERIC FRASHER

Eric, 41, of Centennial, is a married father of two teenagers. In love with his country, he joined the military at 18, rising to the level of Army Sergeant and becoming an explosives expert. Serving at the White House in 1990, he watched in person as President Bush briefed reporters on the day Iraq first invaded Kuwait. He was shortly thereafter sent to the Middle East to serve in what would become Dessert Storm.

Subsequently diagnosed with Multiple Sclerosis, Eric is now retired from the military, from which he was honorably discharged and has since been classified by the U.S. Department of Veterans Affairs as 100 percent disabled. He first registered as a medical marijuana patient in Colorado two years ago.

Medical marijuana helps ease Eric's extensive symptoms, which include lower extremity muscle spasms, migraine headaches, and neuropathic pain issues in his feet he describes as similar to walking "on a hot asphalt road without socks and shoes in the middle of the summer." Medical marijuana also aids with sleep, and increases the amount of time he can go between doses of serious narcotic prescription drugs including Methadone, Oxycodone, Klonopin, and Valium.

Living on a fixed income, Eric has been hit hard by CannaMart's forced closure. He now must purchase medical marijuana from a dispensary located much further from his house and at much higher costs. Frequently too weak to drive, this responsibility often falls on Eric's wife, a small business owner and busy mother. As a result of this new hardship, Eric has attempted to decrease his medical marijuana intake. The experiment is failing miserably, with Eric saying, "I am more uncomfortable from the neuropathic pain in my feet and cramping from the leg spasms that make it difficult to walk."

In spite of his health challenges, Eric remains committed to serving his community. He and his wife previously served as foster parents, and today volunteer in support of several youth organizations. Medical marijuana helps makes this commitment possible, but in the aftermath of CannaMart's closure, he now suffers financially and physically as he attempts to balance his own health needs with the needs of his family.

SHANNON MOSHER

Shannon, 35, is a professionally trained chef, a veteran of the U.S. Army, and currently lives in Broomfield.

Shannon suffers from Ankylosing Spondylitis, a rare, progressive, incurable disease resulting in spinal fusion and a multitude of other excruciating symptoms, including deterioration of vision and dental health, chronic severe pain with muscle spasms, thyroid disorder, and a hernia from subcutaneous injections of immune suppression drugs.

Shannon, who has been unable to work for nearly a year due to complications resulting from his condition, has been registered as a medical marijuana patient in Colorado for the last five years. He has experienced a tremendous benefit when adding medical marijuana to his larger health management strategy, which also utilizes conventional pharmaceuticals, including Levothyroxin, Welbutrin, Nasacort, Protonix, Enbrel, Albutorol, Valium, Morphine Sulphate, and eye drops for iritis. Expressing frustration with doctors who too eagerly write narcotic pain prescriptions, Shannon has been able to successfully utilize medical marijuana to reduce his pill intake, manage inflammation, and sustain an appetite that would otherwise be obliterated by the conventional prescriptions he takes to survive.

Financially destitute as a result of his health woes, Shannon cannot afford to purchase or maintain a car. Prior to CannaMart's closing, its employers, including co-owner Stan Zislis, provided Shannon transportation to the dispensary, and in other cases, provided home delivery of his medicine. Since CannaMart's closing, Shannon has moved temporarily to Broomfield, where he is staying with friends and has been unable to find a care-giver capable or willing to provide similar personalized services. "I think that CannaMart should be reopened because I feel they were leading a very good example of what these operations should be accomplishing or achieving for their patients," he said. In addition to generous transportation services, Shannon also says CannaMart took the time required to really understand each patient's conditions, maintained detailed records of all positive and negative interactions between specific types of medical marijuana and a patient's conditions, provided a safe and secure environment, and maintained a superior selection and quality at very competitive prices.

KIRSTEN LAMB

Kirsten, 41, lives in Centennial and has been married for two years. She's an avid sports fan and she earned her bachelor's degree with honors in Criminal Justice, graduating with a perfect 4.0 grade point average.

Kirsten suffers from Multiple Sclerosis, a condition resulting in severe joint pain, restless leg syndrome, and severe insomnia. New to Colorado's medical marijuana registry, she became a patient just four months ago and only as a last resort, seeking an alternative to the prescription drugs that were failing to adequately control or address her symptoms. These medications include Copaxone, Gabapentin, Cyclobenzaprine, Meloxicam, Sertraline, Advair, and Mirapex. With the addition of medical marijuana to her treatment strategy, she can now peacefully sleep through an entire night, something she was never previously able to do in her adult life.

Prior to the City of Centennial's forced closure of CannaMart in October, the dispensary served as Kirsten's first and only care-giver. While she has since found a new dispensary, she misses the expert knowledge CannaMart provided and its employees' willingness to help her navigate the process of finding the specific strains of medical marijuana best suited to treat her specific symptoms. In addition, she points out, other dispensaries lack CannaMart's private consultation rooms, facility security, product variety, and personalized service, including maintaining detailed patient records. She also appreciated CannaMart's willingness to work around her schedule, which even included staying open late so she could get medicine she needed. At other dispensaries, she feels like she's just "another number;" at CannaMart, she was given individualized care and respect she now misses terribly.

The Plaintiffs, by and through their attorneys, hereby provide the Court with this Bench Brief to aid the Court in its determination at hearing on December 18, 2009. The following Bench Brief contains the relevant points and authorities. As such, Plaintiffs state as follows.

INTRODUCTION

As this Court is aware, a hearing is set for December 18, 2009 concerning Plaintiffs' request for injunctive relief. Because of the pace and schedule of the December 18th hearing, Plaintiffs believe that the Court would benefit from having a Bench Brief containing and summarizing Plaintiffs' legal arguments and authorities. The following Bench Brief is intended to accomplish this purpose.

INJUNCTIVE RELIEF STANDARD

A preliminary injunction is designed to preserve and protect legal rights pending the final determination of a cause. Like a temporary restraining order, its purpose is to prevent irreparable harm prior to a decision on the merits of a case. Combined Communications Corp. v. City and County of Denver, 528 P.2d 249, 251 (1974). The moving party must satisfy six factors to obtain a preliminary injunction: (1) a reasonable probability of success on the merits; (2) a danger of real, immediate, and irreparable injury which may be prevented by injunctive relief; (3) lack of a plain, speedy, and adequate remedy at law; (4) no disservice to the public interest; (5) balance of equities in favor of the injunction; and (6) the injunction will preserve and protect legal rights pending the final trial on the merits. Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo.1982).

At hearing, Plaintiffs will present factual evidence supporting each and every element specified above. In particular, the Plaintiffs will present evidence consistent with the facts alleged, in their Verified Complaint and Application for Injunctive and Declaratory Relief, which is adopted and expressly incorporated herein by reference. The primary purpose of this Bench Brief, however, is to crystallize Plaintiffs' legal arguments and to provide citations to the supporting law.

LEGAL POINTS AND AUTHORITIES

As this Court may be aware of by now, the City of Centennial has enacted a ban of all medical marijuana wellness centers within its boundaries. On October 15, 2009, after Plaintiffs Zislis and Kaminer had operated their Centennial Wellness Center for nearly a month-and-a-half, the City had issued a Cease and Desist Letter, which informed these Plaintiffs that "a medical marijuana dispensary that grows, processes, packages, and/or sells marijuana is not permitted in the City." See Exhibit A (emphasis in original). Thus, the ban on medical marijuana wellness centers. Then, in the past few days, the City had taken additional steps concerning this issue, and enacted an official moratorium on medical marijuana related businesses because, inter alia:

the City of Centennial has received numerous inquiries from individuals seeking to establish and license business operations for the purpose of cultivation, sale, distribution, or to otherwise engage in commerce pertaining to the use of medical marijuana in the City of Centennial.

See Exhibit B, at Page 2. In addition, the moratorium stated that:

the City Council finds that acceptance, processing, or approving any such applications or permitting such uses under the existing inadequate land use, development, or business license regulations prior to any state or federal legislation regulating medical marijuana or the completion of new local regulations concerning medical marijuana may undermine and defeat the City's ability to promote coordinated land uses in furtherance of providing for the health, safety, and welfare of its citizens and may significantly impair the City's character...

See Exhibit B, at Page 3 (emphasis added).

In determining that the existing land use regulations (i.e., the "Centennial Land Development Code," or the "LDC") are "inadequate" and by the adoption of this moratorium, the City is per se acknowledging that its basis for the Cease and Desist Letter, and its ban on medical marijuana dispensaries set forth therein is without merit.

In any event, the following legal positions will demonstrate to the Court why Centennial's ban is inappropriate, illegal, and inconsistent with its powers under the Colorado Constitution and the Colorado Revised Statutes and, accordingly, why an injunction should enter in favor of the Plaintiffs.

A. The City Cannot Wholly Ban a Use and Industry Within its Boundaries.

As stated above, the City has determined that "a medical marijuana dispensary that grows, processes, packages, and/or sells marijuana is not permitted in the City." See Exhibit A (emphasis in original). Centennial's rigid policy of banning all medical marijuana dispensaries deprives qualified medical marijuana patients of the medicine guaranteed to them by Amendment Twenty (codified as Article XVIII, Section 14 of the Colorado Constitution). This arbitrary decision also harms "primary care-givers," who also have well-defined and guaranteed constitutional protections under the Colorado Constitution. Thus, the City has affected an unreasonable burden on the Plaintiffs' respective rights to provide and receive the care expressly authorized under the Colorado Constitution.

COLORADO CONSTITUTIONAL LAW CONCERNING BANNED USES OR INDUSTRIES

To be sure, local governments are entitled to regulate certain land use activities and certain business activities by delineating appropriate areas for those uses or activities. However, local governments are not empowered to wholly ban a use or industry within its boundaries. See Combined Commerce Corp. v. City and Cty of Denver, 542 P.2d 79, 82-83 (1975); Exton Quarries Inc. v. Zoning Bd. Of Adjustment of West Whiteland Twp., 228 A.2d 169, 179 (1967). This well-established Colorado Supreme Court jurisprudence ranges from protection of mining operations (Colorado Mining Association v. Summit County, 199 P.3d 718 (2009)) to constitutionally protected free speech-related businesses (Combined Commerce Corp. v. City and Cty of Denver, supra). In fact, in a scenario where an entire land use or industry is wholly banned, Courts are to examine with heightened scrutiny and increased circumspection those local government actions that serve to ban certain land uses or activities instead of delineating appropriate areas for those uses or activities. Id; id.

Though cities generally have broad land use planning authority, that authority does not include the right to ban disfavored uses from all zoning districts. Combined Commc'n Corp., 542 P.2d at 82-83. Rather, local land use authority is to be exercised by designating appropriate areas for different land uses and placing conditions on those uses. Colorado Mining Association v. Summit County, 199 P.3d 718 (2009). This fundamental legal principal is known as a "time, place, and manner" restriction.

In Combined Commc'n Corp., supra, the City and County of Denver enacted two ordinances that prohibited the erection of new outdoor advertising signs and, over a period of time, required the removal of all existing signs city wide. 542 P.2d 79. The combined effect of the two ordinances would be to eliminate the billboard business in Denver, by enforcing the prohibition against the erection of any new billboards, and by forcing the removal of existing signs. Id.

The Combined Commc'n Corp. trial court declared these ordinances unconstitutional, and was predicated upon several grounds, including: that the subject ordinances constitute a taking of property without just compensation violative of the Fifth Amendment of the United States Constitution and of Article II, Section 15 of the Colorado Constitution; that the ordinances violate state law on a matter of state-wide concern; and, that the ordinances violate the plaintiffs' freedom of speech. Id.

Furthermore, the Court specifically noted that it had previously determined, in General Outdoor Advertising Co. v. Goodman, 262 P.2d 261 (Colo. 1953), that the power to regulate does not include "any power, express or inherent, to prohibit." Id. In the General Outdoor case, the issue was whether zoning authority given county commissioners to "regulate the size of buildings or structures . . ." allowed the commissioners to pass a zoning resolution which would effectively exclude billboards in Arapahoe County. Id.

The Colorado Supreme Court ultimately determined that the ordinances served to prohibit an entire industry throughout the entire area of a major city. Id. And the Court reviewed numerous cases and could not find one that holds, under the power of regulation, that a separate and distinct industry can be prohibited throughout an entire city. Id. The Court held that "[s]ince the outdoor advertising industry is a separate and distinct industry, the effect of Ordinance 94 is to completely prohibit the improvement and extension of that industry in the entire city. Id. Under "a concept of reasonableness, the charter authorization of regulation does not permit Denver under its zoning power to prohibit this entire industry." Id.

Like in the Combined Commc'n Corp. case, this Court should conclude that Centennial cannot maintain its entire ban on medical marijuana dispensaries because the ban, like the ordinances in the above-referenced Denver case, serves to wholly prohibit an entire use and industry - the medical marijuana industry, which is constitutionally authorized. See Article XVII, Section 14(1)(2)(d), which identifies "dispensing" as authorized under the medical marijuana provisions. Furthermore, because patients have a constitutional right to designate a care giver, it would be incongruous to preclude them from safe and professional access to medical marijuana from that care giver because "[a] supplier of [protected] material should be able to find outlets; [and] a potential buyer should be able to find a seller." City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 783-784 (2004).

FEDERAL CONSTITUTIONAL LAW CONCERNING BANNED USES OR INDUSTRIES

This sentiment has been echoed and upheld, on multiple occasions, by the United States Supreme Court as well. In City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004), a case argued by opposing counsel J. Andrew Nathan, the United States Supreme Court reiterated that zoning requirements may not suppress or roadblock constitutional rights (in that case, First Amendment rights concerning adult magazines and products were at issue), but rather for a zoning system to be constitutional, it must "seek to determine where, not whether, protected adult material can be sold." 541 U.S. at 783; see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46 (1986)("content-neutral" time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit the constitutional right at stake). In Littleton, Colorado v. Z.J., Littleton's regulatory scheme regarding adult material sellers did not present the grave "dangers of a censorship system" by banning such business altogether. 541 U.S. at 783.

Here, Centennial's sweeping ban of these types of businesses (medical marijuana wellness centers) does not fit within the constitutionally recognized and permitted "time, place, and manner" restrictions applied to other constitutional rights such as free speech. Furthermore, this ban is overbroad in that it severely restricts the constitutionally-protected right to use medical cannabis in its effort to prevent vague, generalized, and illegitimate concerns. Thus, on its face, it is unconstitutional, as it unduly burdens patients and caregivers from exercising their constitutionally recognized rights and roles under Article XVII of the Colorado Constitution, which is specifically related to health care. The Court pointedly held in Littleton, Colorado v. Z.J. that "[a] supplier of that material [adult materials] should be able to find outlets; [and] a potential buyer should be able to find a seller." 541 U.S. at 783-784. The very same principles apply to the case at hand; the Plaintiffs are entitled to have "outlets" available to them within the City of Centennial that are consistent with the constitutionally recognized rights associated with medical marijuana.

Furthermore, Centennial's outright ban of medical marijuana wellness centers is unconstitutional because it is aimed at restraining the access to medical marijuana, itself, and not some secondary effect of such businesses. The U.S. Supreme Court has held in the First Amendment context that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment. See Carey v. Brown, 447 U.S. 455, 462-63, and n. 7 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 98-99 (1972). On the other hand, the Court has held that so-called "content-neutral" time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 807 (1984); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647-48 (1981). Here, the City of Centennial has failed and refused to provide any sort of reasonable regulation on the distribution of medical marijuana, and has violated these constitutional tenets.

In short, the City's ban is solely based upon attempts to preclude access to medical marijuana, and this is unconstitutional under any reading of the law, as it is not "content neutral." It is fundamental that an entire use or industry cannot be banned within a City, and Centennial has violated this constitutional principle.

B. The Defendant's Ban on Medical Marijuana Dispensaries is Preempted by State Law.

A local ban ordinance or interpretation that conflicts with state statutes in an overlapping field of regulation, e.g. Centennial's ban or constitutionally protected medical marijuana rights here, is subject to preemption by State Law. See Voss v. Lundvall Brothers, Inc., 830 P.2d 1061 (Colo. 1992); see also Northglen v. Ibarra, 62 P.3d 151 (Colo. 2003). As set forth in Voss and Ibarra, local ban ordinances that conflict with state statutes in an overlapping field of regulation are subject to preemption. Here, the City's ban on medical marijuana dispensaries conflicts with the Colorado Constitution (Article XVIII, Section 14), the implementing state legislation (C.R.S. §18-18-406.3), and the Rules (5 CCR 1006-2) enacted by the Department of Public Health and Environment.

C.R.S. § 30-15-103 provides that an ordinance or other legislative enactment by a city cannot be in conflict with a state law of general application. See Hamilton v. City and County of Denver, 517 P.2d 834, (Colo. 1973); Ray v. City and City of Denver, 121 P.2d 886, 888 (1942)(Local regulation and a state regulatory scheme impermissibly conflict if they contain either express or implied conditions which are inconsistent and irreconcilable with each other); Carbondale v. GSS Props., LLC, 169 P.3d 675, 682 (Colo. 2007). Furthermore, local governments may not forbid that which the state has explicitly authorized. Johnson v. Jefferson Cty. Bd. Of Health, 662 P.2d 463, 471 (Colo. 1983).

While Article XX, Section 6 of the Colorado Constitution affords Home Rule Municipalities additional latitude in regulating land use matters, this power is not absolute. And here, the City's Home Rule land use authority is not without bounds. Salle v. Giggal, 26 P.2d 499, 501 (Colo. 1953). In particular, local land use ordinances banning an activity that a statute authorizes are subject to heightened scrutiny in preemption analysis. Colorado Mining Association v. Summit County, 199 P.3d 718 (Colo. 2009). Here, the City has banned any and all outlets for patients and caregivers to carryout their constitutionally vested relationship under Article XVII, Section 14 of the Colorado Constitution. The General Assembly never contemplated that the prohibition of an entire land use could be affected through ordinance. Id. The General Assembly, when implementing the Medical Marijuana Program, could have had the option to ban or preclude dispensaries, or to delegate the right to do so to local governments. Instead, it chose to vest the Colorado Department of Public Heath and Environment with implementation power of the Program only, with no land use regulations proscribed.

Here, the City's regulations impose technical preclusionary conditions on the constitutional medical marijuana provisions, where no such conditions are imposed under State Law or its regulatory scheme; those City regulations expressly and impermissibly conflict with the state interest. The City's ban of medical marijuana dispensaries contravenes the state's interest in implementing the medical marijuana provisions for caregivers and patients. Thus, due to this direct conflict, the State's interest takes precedence over the local ban. The State's interest in fulfilling its mandate to protect property rights and the accessibility of medical marijuana are sufficiently dominant to override the City's ban on medical marijuana dispensaries and the impact of the Cease and Desist Letter. Accordingly, the City's ban cannot stand because it materially impedes the states goals expressed in Article XVIII, Section 14 of the Colorado Constitution. A patchwork of city-level bans on medical marijuana dispensaries will inhibit what the Colorado Constitution has recognized as a necessary medical right and will impede the orderly development of the medical marijuana program.

The City, therefore, has exceeded its statutory and constitutional authority by adopting a ban on medical marijuana dispensaries and through its issuance of the Cease and Desist Letter. These actions depart from permitted areas of land use regulation and intrude into areas of exclusive state regulation and oversight, as fundamental constitutional rights and issues of statewide concern are at play. Constitutionally protected property interests are a matter of statewide concern and must be treated uniformly throughout the state. JAM Restaurant, Inc. v. City of Longmont, 140 P.3d 192 (Colo.App. 2006)(zoning is a matter of statewide and/or mixed state and local concern); Colorado Constitution Article II, Section 15; Colorado Constitution Article XVIII, Section 14(2)(e).

Perhaps most importantly, however, the City has waived its Home Rule powers in this instance by expressly making this a matter of statewide, or even national, concern. Specifically, in the Cease and Desist Letter, the City expressly finds that the basis for a prohibition of all medical marijuana dispensaries in the City is the fact that the federal Controlled Substance Act prohibits the sale, use, and possession of marijuana. See Exhibit A. Thus, it relies on a matter of federal policy, not local policy.

The City's actions in banning medical marijuana dispensaries and issuing the Cease and Desist Letter sets new restrictions and limitations on property rights and on the implementation of the State's constitutionally-mandated medical marijuana program. The ban and the Cease and Desist Letter are, therefore, in direct conflict with provisions of the Colorado Constitution. Accordingly, the ban and the Cease and Desist Letter are preempted by the State of Colorado.

C. Under No Circumstance, Can a City Enforce Federal Law.

Centennial asserts that the fact that the "federal Controlled Substance Act prohibits the sale, use, and possession of any amount or marijuana...." constitutes a sufficient "more restrictive requirement[]" (as specified under Sec. 11.1.111, LDC), which purportedly allows it to ban medical marijuana dispensaries throughout the City of Centennial. See Exhibit A. In effect, the City has taken it upon itself to enforce this federal law with regard to alleged land use violations concerning the medical marijuana wellness center here. The City, however, may not use federal law to deprive these Plaintiffs rights that are expressly provided for under Colorado Law.

LOCAL GOVERNMENTS MAY NOT ENFORCE FEDERAL LAW

It is axiomatic that state courts may not enforce the federal criminal statutes. "The State tribunals have no power to punish crimes against the laws of the United States, as such. The same act may, in some instances, be an offense against the laws of both, and it is only as an offense against the State laws that it can be punished by the State, in any event." People v. Kelly, 38 Cal. 145, 150 (1869); see also People v. Grosofsky, 73 Cal.App.2d 15, 17-18 (1946); People v. Tilehkooh, 113 Cal.App.4th 1433, 1445-1446 (Cal.App. 3 Dist. 2003); City of Garden Grove v. Superior Court, 157 Cal.App.4th 355, 378 (Cal.App. 4 Dist. 2007); People v. Mower, 49 P.3d 1067 (Cal. 2002).

Moreover, states and local governments cannot do indirectly what they cannot do directly. City of Garden Grove v. Superior Court, 157 Cal.App.4th 355, 379, (Cal.App. 4 Dist. 2007); People v. Tilehkooh, 113 Cal.App.4th 1433, 1446 (Cal.App. 3 Dist. 2003). In other words, it is not the job of the local government to enforce federal drug laws. City of Garden Grove v. Superior Court, supra.

Likewise, it is a principle of federalism under the U.S. Constitution that Congress does not have the authority to commandeer the processes of states "by directly compelling them to enact and enforce a federal regulatory program." New York v. United States, 505 U.S. 144, 161 (1992); see also State v. Nelson, 195 P.3d 826, 833 - 834 (Mont. 2008)("trial court exceeded its statutory authority in imposing a condition that required defendant to comply with all federal laws insofar as condition related to enforcing federal Controlled Substances Act at expense of state Medical Marijuana Act..."). This principle was forcefully articulated by the United States Supreme Court in Printz v. United States, 521 U.S. 898, 935 (1997), as follows:

Congress cannot compel the States to enact or enforce a federal regulatory program.... The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

States Courts, therefore may not, under these circumstances, use an alleged violation of the federal law as a justification for an express deprivation of rights under Colorado Law. State v. Nelson, supra.

This issue has come up in other contexts as well. Across the nation many local governments had recently enacted ordinances preventing landlords from leasing or renting properties to illegal immigrants. In 2006, the city of Hazleton, Pennsylvania passed an ordinance which made it unlawful for businesses to hire, or for landlords to rent to, undocumented immigrants. In July 2007, a federal court ruled that the ordinances were preempted by federal law and prohibited the town of Hazleton from enforcing them. Lozano et al v. City of Hazelton, 496 F.Supp.2d 477, 544-45 (M.D. Pa. 2007). And in May 2008, a federal court permanently enjoined a similar ordinance, holding that it was an impermissible local regulation of immigration and thus preempted. Villas at Parkside Partners v. City of Farmers Branch, 2008 WL 2201980 (N.D. Tex. May 28, 2008). These cases further support the fact that local governments may not enact ordinances applying or enforcing federal law.

THE U.S. GOVERNMENT CARVED AN EXCEPTION TO THE CONTROLLED SUBSTANCE ACT

Most importantly, however, the City's reliance on the Controlled Substance Act is misplaced, as the highest ranking law enforcement official in the United States has carved out an exception to the Controlled Substances Act by officially stating that the federal government will not prosecute or interfere with medical marijuana patients and caregivers who are in compliance with federal and state law, as publicly stated by U.S. Attorney General Eric Holder on February 25, 2009 and, again, on March 17, 2009. See also Exhibit C, U.S. Department of Justice, Office of the Deputy Attorney General, "Memorandum: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana," October 19, 2009.

As stated, on October 19, 2009, the U.S. Justice Department issued "formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes." See Exhibit B. These formal guidelines echo the previous statements by U.S. Attorney General Eric Holder on February 25, 2009 and on March 17, 2009. Plaintiffs Kaminer and Zislis reasonably relied on the statements made by Attorney General Holder when they opened CANNAMART and, later, on the written policy, and upon the actions of the Colorado Department of Public Health and Environment.

These Federal formal guidelines instruct U.S. Attorneys to refrain from using any federal resources for the investigation and prosecution of individuals who are in compliance with state laws governing the medical use of marijuana. Specifically, it is stated that "[a]s a general matter, pursuit of these priorities should not focus federal resources in your States on individuals who are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." See Exhibit C. Plaintiffs Kaminer and Zislis are, and have always been, fully compliant with Colorado's medical marijuana laws. Plaintiffs Kaminer and Zislis met with the City of Centennial to discuss this matter shortly after receiving the Cease and Desist Letter, and were informed that the City was indeed aware of Attorney General Holder's statements when it issued the ban and the Cease and Desist Letter. Yet, Centennial has refused to consider the Department of Justice's own statements in considering whether federal law bans medical marijuana in Colorado.

To compound this matter further, the United States Government continues to provide medicinal marijuana to a limited number of patients under the Compassionate Investigatory New Drug Study Program. Thus, the City's reliance on federal law is misplaced and illegal. With that said, the ban should be lifted accordingly.

D. The City Has Misapplied the Relevant City LDC Provision (Section 11.1.111, LDC).

The October 15th Cease and Desist Letter announced that Mr. Zislis is in "violation of [Sec. 11.1.111] the Centennial LDC..." and that he is "ordered to immediately cease and desist operation of a medical marijuana wellness center within the City of Centennial" (emphasis in original). See Exhibit A. The substance of the Cease and Desist Letter is that the City of Centennial does not allow for medical marijuana dispensaries anywhere within its City limits under a strained analysis of Sec. 11.1.111, LDC (i.e., the "Centennial Land Development Code"), because the "federal Controlled Substance Act prohibits the sale, use, and possession of any amount or marijuana...." Id.

Sec. 11.1.111, LDC reads as follows:

Section 11.1.111 Overlapping Regulations

These regulations shall apply to all applications made on or after 2-16-99. To the extent there is a conflict between these regulations and any other law, ordinance, resolution, rule or regulation of any kind or with any term or condition of an approved preliminary or final development plan, the more restrictive requirements shall apply to such application, accept to the extent limited by vested property rights then in effect.

Centennial asserts that the fact that the "federal Controlled Substance Act prohibits the sale, use, and possession of any amount or marijuana...." constitutes a sufficient "more restrictive requirement[]" (as specified under Sec. 11.1.111, LDC), which purportedly allows it to ban medical marijuana dispensaries throughout the City of Centennial.

However, the LDC (and this provision in particular) does not proscribe a business or entity that is alleged to be prohibited by federal law, or any other law. Properly construed, Section 11.1.111 only states that the granting of an application for development of real property does not exempt the application from any other more restrictive law that applies. After all, the LDC is a land use development code; not a business or criminal enforcement code.

More importantly, medical marijuana wellness centers are not required to obtain any sort of licensing or approval from any other authority or jurisdiction, including the federal government. And there is nothing under Centennial's ordinances that otherwise prohibits this sort of use or business. The City relies on a strained analysis of its LDC, which it has publicly determined to be "inadequate." See Exhibit B at Page 3. This interpretation should not stand.

E. C.R.S. §38-1-101(3)(a) Prevents the City From Enforcing Its Ban and the Cease and Desist Letter.

The City has exceeded its statutory and constitutional authority by adopting a ban on medical marijuana dispensaries and through its issuance of the Cease and Desist Letter. In doing so, the City has violated C.R.S. §38-1-101(3)(a). The Colorado Court of Appeals recently held that Constitutionally protected property interests are a matter of statewide concern and must be treated uniformly throughout the state; this includes zoning actions by a local government. JAM Restaurant, Inc. v. City of Longmont, 140 P.3d 192 (Colo.App. 2006); Colorado Constitution Article II, Section 15; Colorado Constitution Article XVIII, Section 14(2)(e). Here, C.R.S. §38-1-101(3)(a) wholly prevents the City from enforcing its ban and the Cease and Desist Letter.

C.R.S. §38-1-101(3)(a) states that:

(3) (a) Notwithstanding any other provision of law to the contrary, a local government shall not enact or enforce an ordinance, resolution, or regulation that requires a nonconforming property use that was lawful at the time of its inception to be terminated or eliminated by amortization.

This statute was specifically enacted to protect and defend fundamental civil rights of persons to property and to ensure that persons throughout the State are not unjustly deprived of their property rights. In fact, the Legislature expressly identified termination of uses as a problem that should be dealt with in a uniform manner throughout the State. Here, as stated above, the use of the subject land was permitted by the City at the time the sales tax license was issued, and when the sales taxes and fees were paid to and accepted by the City. At all times, these Plaintiffs operated at the subject location lawfully and did not misstate anything in their sales tax license application.

But here, the City did not even afford these Plaintiffs an opportunity to amortize the business prior to its required shut down; instead, it issued a cease and desist letter without due process or an opportunity to be heard. The City took an otherwise lawful use and decided to shut it down by all-of-a-sudden determining it to be a nonconforming use. At a minimum, the subject business is a legal nonconforming use. But, even if the City did afford these Plaintiffs the opportunity to amortize the business prior to shutdown, its actions are wholly inconsistent with C.R.S. §38-1-101(3)(a). Consequently, the ban should be lifted and CANNAMART should be permitted to reopen.

CONCLUSION

Based upon the foregoing, Plaintiffs respectfully submit that an injunction should enter in their favor.